Citation Nr: 1035557
Decision Date: 09/20/10 Archive Date: 09/28/10
DOCKET NO. 02-17 449 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for major depression or
other acquired psychiatric disorder, also claimed secondary to
service-connected disabilities.
2. Entitlement to higher initial ratings for cephalgia, rated 30
percent prior to May 5, 2009, and 50 percent on that date.
3. Entitlement to a total disability rating based on individual
unemployability.
REPRESENTATION
Appellant represented by: Calvin Hansen, Attorney at Law
ATTORNEY FOR THE BOARD
C. Fetty, Counsel
INTRODUCTION
The Veteran performed active military service from October 1965
to October 1967.
This matter arises to the Board of Veterans' Appeals (Board) on
appeal from September 2002 and later-issued rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska. The September 2002 rating decision, in
pertinent part, established service connection for cephalgia
(headaches) and assigned a noncompensable rating effective July
12, 2002. In December 2002, the RO assigned an initial 10
percent rating. In October 2003, the Board granted an initial 30
percent rating.
In December 2005, the United States Court of Appeals for Veterans
Claims (hereinafter: the Court), in pertinent part, vacated that
portion of the October 2003 Board decision that denied a rating
higher than 30 percent for cephalgia. The Court remanded the
case back to the Board. In November 2006, the U.S. Court of
Appeals for the Federal Circuit reversed the December 2005 Court
decision, based on an issue not on appeal here. In February
2007, the Court, in pertinent part, reaffirmed its December 2005
order vacating that portion of the October 2003 Board decision
that denied a higher rating for cephalgia and again remanded the
case back to the Board. In May 2008, the Board remanded the case
for development. In June 2009, the RO assigned a 50 percent
rating for cephalgia effective May 5, 2009.
This appeal also arises from June 2009-issued RO rating decision
that denied service connection for major depressive disorder.
The Board has re-characterized that issue as an appeal for
service connection for major depression or other acquired
psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1
(2009) (a claimant seeks service connection for the symptoms
regardless of how those symptoms are diagnosed or labeled).
This appeal also arises from a January 2010-issued RO rating
decision that denied entitlement to a total disability rating
based on individual unemployability (hereinafter: TDIU).
Entitlement to TDIU is addressed in the REMAND portion of the
decision below and is REMANDED to the RO (private attorney
representation).
FINDINGS OF FACT
1. The Veteran is not a combat veteran, nor did he serve in
Vietnam.
2. An acquired psychiatric disorder first arose many years after
active service.
3. Psychiatric diagnoses, such as major depressive disorder;
anxiety disorder, not otherwise specified (NOS); post-traumatic
stress disorder (PTSD); and, major depression, have been offered.
4. Competent medical evidence dissociates any current
psychiatric disorder from active military service or service-
connected disability.
5. Cephalgia has been manifested by severe, prostrating
headaches, productive of severe economic inadaptability,
occurring at least twice weekly throughout the appeal period.
CONCLUSIONS OF LAW
1. Major depression or other acquired psychiatric disorder was
not incurred in or aggravated by active military service, nor may
it be presumed to have been incurred in or aggravated by active
military service, nor was it caused or aggravated by service-
connected disability. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303,
3.304, 3.307, 3.309. 3.310 (2009).
2. The criteria for a 50 percent schedular rating, and no
higher, for cephalgia are met throughout the entire appeal
period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic
Code 8100 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has remanded the case for development. When the remand
orders of the Board are not complied with, the Board itself errs
in failing to ensure compliance. See Stegall v. West, 11 Vet.
App. 268, 271 (1998). In this case, all remand orders have been
complied with.
VA must notify and assist claimants in substantiating claims for
benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2009). Upon receipt of a complete or substantially
complete application for benefits, VA must notify the claimant
and his attorney of any information and any medical or lay
evidence that is necessary to substantiate the claims.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). VA must also inform the
claimant of any information and evidence not of record that VA
will seek to provide and that the claimant is expected to
provide. This notice must be provided prior to an initial
unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In
this case, VA sent notice letters to the claimant in June 2008
and in February, April, and July 2009.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court
of Appeals for Veterans Claims (Court) held that, upon receipt of
an application for service-connection, 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) require VA to provide the claimant with
notice of what information and evidence not previously provided,
if any, will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim, including
notice of what is required to establish service connection and
that a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded. In
this case, although the notice provided did not address either
the rating criteria or effective date provisions that are
pertinent to the claim, such error was harmless given that
service connection is being denied, and hence no rating or
effective date will be assigned with respect to this claimed
condition.
In Dingess, the Court also held that in cases where service
connection has been granted and an initial disability rating and
effective date have been assigned, the typical service-connection
claim has been more than substantiated, it has been proven,
thereby rendering section 5103(a) notice no longer required
because the purpose that the notice is intended to serve has been
fulfilled. Id. at 490-91. With respect to the appeal for a
higher initial rating for cephalgia, because the notice that was
provided before service connection was granted was legally
sufficient, VA's duty to notify in this case has been satisfied.
VA also has a duty to assist the claimant in the development of
the claim. This duty includes assisting the claimant in
obtaining service medical records and pertinent treatment records
and providing an examination when necessary. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159.
All necessary development has been accomplished and adjudication
may proceed without unfair prejudice to the claimant. See
Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and
private clinical records. The claimant was afforded VA medical
examinations. There are no Social Security Administration (SSA)
records, as the claimant has not applied for SSA benefits.
Neither the claimant nor his attorney has identified, and the
record does not otherwise indicate, any additional existing
evidence that is necessary for fair adjudication of the claims
that has not been obtained. Hence, no further notice or
assistance to the claimant is required to fulfill VA's duty to
assist in the development of the claims. Smith v. Gober, 14 Vet.
App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).
Service Connection
Service connection will be awarded for disability resulting from
injury or disease incurred in or aggravated by active service
(wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002),
38 C.F.R. § 3.303(a) (2009).
Service connection requires competent evidence showing: (1)
medical or, in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; (2) medical
evidence of current disability; and (3) medical evidence of a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604
(Fed. Cir. 1996).
In Caluza, the Court also stressed that § 3.102 states, "The
reasonable doubt doctrine is also applicable even in the absence
of official records, particularly if the basic incident arose
under combat, or similarly stressful conditions [emphasis added],
and is consistent with the probable results of such known
hardships." Caluza, 7 Vet. App. at 509.
Each disabling condition shown by service medical records, or for
which the Veteran seeks service connection, must be considered on
the basis of the places, types, and circumstances of his service
as shown by service records, the official history of each
organization in which he served, his medical records, and all
pertinent medical and lay evidence. 38 C.F.R. § 3.303(a).
"Direct" service connection may be granted for any disease not
diagnosed initially until after discharge when all the evidence,
including that pertinent to service, establishes that the disease
was incurred during service. 38 C.F.R. § 3.303(d); Combee v.
Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Chronic diseases listed at 38 C.F.R. §§ 3.307, 3.309 are accorded
special consideration for service connection. Where a Veteran
served at least 90 days during a period of war or after December
31, 1946, and a listed chronic disease, such as psychosis or
other organic diseases of the nervous system, becomes manifest to
a degree of 10 percent within one year from the date of
termination of such service, such disease will be presumed to
have been incurred in service, even though there is no evidence
of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009).
Once the evidence has been assembled, the Board assesses the
credibility and weight to be given to the evidence. Madden v.
Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited
therein. When there is an approximate balance of evidence
regarding the merits of an issue material to the determination of
the matter, the benefit of the doubt in resolving each such issue
shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002);
38 C.F.R. § 3.102 (2009).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that a Veteran need only demonstrate that there is an
approximate balance of positive and negative evidence in order to
prevail. To deny a claim on its merits, the evidence must
preponderate against the claim. Alemany v. Brown, 9 Vet. App.
518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
According to 38 U.S.C.A. § 1154(a), the Secretary must consider
the places, types, and circumstances of the Veteran's service,
his unit's history, his service medical records, and all
pertinent lay and medical evidence in the case. More favorable
consideration is afforded combat Veterans under 38 U.S.C.A.
§ 1154(b), but, because the Veteran was not in combat, he will
not be afforded this consideration.
Service connection may be established on a secondary basis for a
disability which is proximately due to or the result of service-
connected disease or injury. 38 C.F.R. § 3.310(a). Establishing
service connection on a secondary basis requires evidence
sufficient to show (1) that a current disability exists and (2)
that the current disability was either (a) proximately caused by
or (b) proximately aggravated by a service-connected disability.
Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a
service-connected disability aggravates a nonservice-connected
condition, a Veteran may be compensated for the degree of
disability (but only that degree) over and above the degree of
disability existing prior to the aggravation. Allen, 7 Vet. App.
at 448.
38 C.F.R. § 3.310 was amended effective October 10, 2006. The
revised § 3.310(b) provides the following:
Any increase in severity of a nonservice-connected
disease or injury that is proximately due to or the
result of a service-connected disease or injury, and
not due to the natural progress of the nonservice-
connected disease, will be service connected.
However, VA will not concede that a nonservice-
connected disease or injury was aggravated by a
service-connected disease or injury unless the
baseline level of severity of the nonservice-connected
disease or injury is established by medical evidence
created before the onset of aggravation or by the
earliest medical evidence created at any time between
the onset of aggravation and the receipt of medical
evidence establishing the current level of severity of
the nonservice-connected disease or injury. The
rating activity will determine the baseline and
current levels of severity under the Schedule for
Rating Disabilities (38 C.F.R. part 4) and determine
the extent of aggravation by deducting the baseline
level of severity, as well as any increase in severity
due to the natural progress of the disease, from the
current level.
In February 2009, the Veteran claimed service connection for
depression secondary to service-connected cephalgia, tinnitus,
bilateral hearing loss, and residuals of an injury to the face
and upper jaw.
The RO obtained VA out-patient treatment reports that reflect
mental health counseling at various times. A November 2008
report notes Axis I diagnoses of major depressive disorder, NOS;
and, anxiety disorder, NOS. In that report, the examiner, a
licensed social worker, notes that the stressors were all related
to the Veteran's financial worries. The Veteran also showed PTSD
symptoms that were felt to be related to an upcoming bankruptcy
hearing.
A March 2009 VA mental disorders compensation examination report
reflects that a clinical psychologist reviewed the pertinent
history and offered an Axis I diagnosis of major depressive
disorder, moderate, recurrent. The psychologist opined that
major depressive disorder is not secondary to any service-
connected disability and further explained that major depressive
disorder was due to a fire in which the Veteran lost his personal
possessions and became destitute.
A March 2009 VA mental health report, signed by a VA
psychiatrist, contains Axis I diagnoses of anxiety disorder,
PTSD, depressive disorder, and major depression. The stressors
mentioned were the loss of his business, bankruptcy, the death of
his brother, and flashbacks of being drafted.
A March 2010 VA psychiatric note reflects, "PTSD symptoms are
quite active and bothersome." The Axis I diagnoses were chronic
PTSD and recurrent major depression. The examiner mentioned
"increased memories of Vietnam;" however, the Veteran has not
served in Vietnam. His service personnel records reflect that he
underwent basic training in Missouri and then was stationed in
Texas for the balance of his active military service.
The Board must address the competency, credibility, and probative
value of all evidence, including lay evidence. 38 U.S.C.A. §
7104(d) (1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of
record is competent with respect to observance of symptoms
readily observable and it is credible, as there is no indication
of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362,
367-68 (2005). However, the lay evidence may not be used to
establish a diagnosis or etiology. VA regards lay statements to
be competent evidence of descriptions of symptoms of disease,
disability, or injury, but not the determination of an issue
involving a question of medical expertise. 38 C.F.R. § 3.159;
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); but see
Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay
diagnosis is competent if: (1) lay person is competent to
identify the medical condition; (2) lay person is reporting a
contemporaneous medical diagnosis; or (3) lay testimony of
symptoms at the time supports a later diagnosis by a medical
professional). The Veteran's etiology opinion in this matter is
of little value because the determination of the root cause of
any current psychiatric disorder involves a question that only
medical experts may address.
In this case, there are two negative medical opinions concerning
the etiology of any psychiatric disability. The negative medical
opinions are persuasive and are based on correct facts. See
Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical
opinion that contains only data and conclusions is accorded no
weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993)
(medical opinion based upon an inaccurate factual premise has no
probative value); Stefl v. Nicholson, 21 Vet. App. 120, 124
(2007) (medical opinion "must support its conclusion with an
analysis that the Board can consider and weigh against contrary
opinions.").
The only contrary (that is, favorable) medical opinion is a March
2010 VA psychiatric note that reflects "PTSD symptoms are quite
active and bothersome" and "increased memories of Vietnam."
This opinion is not valued, as it is based on an inaccurate
factual premise: the Veteran has not served in Vietnam.
Because there is no indication that a mental disorder arose until
many years after active military service and because the medical
evidence dissociates any current psychiatric disorder from active
military service or service-connected disability, after
considering all the evidence of record, the Board finds that the
preponderance of it is against the claim. Because the
preponderance of the evidence is against the claim, the benefit
of the doubt doctrine is not for application. See 38 U.S.C.A.
§ 5107 (West 2002); Gilbert, supra. Service connection for major
depression or other acquired psychiatric disorder must be denied.
Initial Rating for Cephalgia
The Veteran seeks a higher initial rating for cephalgia. This
disability is rated 30 percent prior to May 5, 2009, and 50
percent on that date.
Disability ratings are based upon the average impairment of
earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009).
Diagnostic codes identify the various disabilities. 38 C.F.R.
Part 4. The entire medical history is reviewed when making
disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski,
1 Vet. App. 589, 592 (1995). In determining the current level of
impairment, the disability must be considered in the context of
the whole recorded history, including service medical records.
38 C.F.R. § 4.2. Where there is a question as to which of two
ratings shall be applied, the higher rating will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. 38 C.F.R. § 4.7.
Evaluation of a disability includes consideration of the
Veteran's ability to engage in ordinary activities, including
employment, and the effect of symptoms on functional abilities.
A VA medical examination report must also include a "full
description of the effects of disability upon the person's
ordinary activity." 38 C.F.R. § 4.10; Martinak v Nicholson,
21 Vet. App. 447, 454 (2007).
In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court
distinguished a claim for an increased rating from that of a
claim arising from disagreement with the initial rating assigned
after service connection was established. The Court stressed
that rather than showing increased disability, it would be
necessary for the Veteran to show that the original rating had
simply been too low. In a later decision, the Court held that
where the evidence contains factual findings that demonstrate
distinct time periods in which the service-connected disability
exhibited diverse symptoms meeting the criteria for different
ratings during the course of the appeal, the assignment of staged
ratings would be necessary. See Hart v. Mansfield, 21 Vet. App.
505, 510 (2007).
Cephalgia has been rated under Diagnostic Code 8100 for the
entire appeal period. Diagnostic Code 8100 is specifically for
rating migraines; however, headaches of any etiology may be rated
under this code, as they are analogous to migraines.
Under Diagnostic Code 8100, a noncompensable rating is warranted
for attacks occurring less frequently than one in two months. A
10 percent rating for migraine headaches is warranted where there
are characteristic prostrating attacks averaging one in two
months over the last several months. A 30 percent rating
requires characteristic prostrating attacks occurring on an
average of once a month over the last several months. A
50 percent evaluation requires very frequent, completely
prostrating and prolonged attacks productive of severe economic
inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2009).
A July 2002 VA neurology compensation examination report notes 7
to 8 severely painful headaches per month-even more often during
cold weather. A November 2002 VA neurology compensation
examination report reflects a reported two to three headaches per
week that caused the Veteran, a commercial artist, to miss work.
The headaches usually resolved within 4 hours and a lot of
photophobia and phonophobia occurred with them. Medication had
not helped. The diagnosis was simply "chronic migraine
headaches."
In a September 2004 brief to the Court, the Veteran argued that a
higher rating is assigned not when all stated rating criteria are
shown, but rather "when the disability picture more nearly
approximates the criteria for the next higher rating."
38 C.F.R. § 4.7. He also pointed out that § 4.21 states that
"it is not expected...that all cases will show all the findings
specified."
In its order of December 2005, the Court found that the Board had
omitted a discussion of the interplay among the guidance set
forth at § 4.3 (reasonable doubt resolved in favor of claimant);
§ 4.7 (higher rating applies where the criteria are more nearly
approximated); and, § 4.21 (all elements specified in a
disability grade need not necessarily be found although
coordination of rating with impairment of function will be
expected in all instances).
On May 5, 2009, VA again examined the Veteran. The physician
noted a complaint of worsening headaches. These occurred weekly
and most of them were prostrating. After noting a history of
weekly headaches, the physician then noted that severe,
incapacitating headaches had occurred daily.
All medical evidence dated within the appeal period appears to
agree that prostrating and severe headaches have occurred at
least twice weekly, or more often, throughout the appeal period.
Because these headaches cause the Veteran to miss work, severe
economic hardship has resulted. In other words, the headaches
are productive of severe economic inadaptability. Comparing
these manifestations to the rating criteria, it is clear that the
criteria for a 30 percent rating are greatly exceeded, because
that rating requires characteristic prostrating attacks that
occur only once a month. Throughout the appeal period, the
Veteran's headaches have occurred much more frequently than once
per month.
Comparing the reported 7 to 8 severe, prostrating headaches per
month and the lost time from work they have caused to the 50
percent rating criteria, it is clear that these criteria are more
nearly approximated. Even if all elements specified in the
rating criteria are not shown, they need not be. 38 C.F.R.
§ 4.21. The Board must resolve any remaining doubt in favor of
the Veteran and find that the 50 percent criteria are more nearly
approximated throughout the appeal period.
In this case, the evidence does not contain factual findings that
demonstrate distinct time periods in which the service-connected
disability exhibited diverse symptoms meeting the criteria for
different ratings during the course of the appeal. The
assignment of staged ratings is therefore unnecessary. Hart,
supra.
After considering all the evidence of record, including the
testimony, the Board finds that the evidence is at least in
relative equipoise. The benefit of the doubt doctrine will
therefore be applied. See 38 U.S.C.A. § 5107 (West 2002);
Gilbert, supra. A 50 percent schedular rating for cephalgia will
therefore be granted for that portion of the appeal period prior
to May 5, 2009.
Concerning the appeal for a schedular rating greater than 50
percent, Diagnostic Code 8100 does not offer a rating greater
than 50 percent. No other impairment, including cognitive
impairment, is shown. Thus, a rating for other diseases of the
central nervous system need not be discussed. Because the
highest schedular rating offered for headaches has been assigned,
there is no need for further analysis. After considering all the
evidence of record, the Board finds that the preponderance of it
is against the claim. Because the preponderance of the evidence
is against the claim, the benefit of the doubt doctrine is not
for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert,
supra. The claim for an initial disability rating greater than
50 percent for cephalgia is therefore denied.
Extraschedular Consideration
The provisions of 38 C.F.R. § 3.321(b) provide that where the
disability picture is so exceptional or unusual that the normal
provisions of the rating schedule would not adequately compensate
the Veteran for his service-connected disability, an extra-
schedular evaluation will be assigned. Where the Veteran has
alleged or asserted that the schedular rating is inadequate or
where the evidence shows exceptional or unusual circumstances,
the Board must specifically adjudicate the issue of whether an
extraschedular rating is appropriate, and if there is enough such
evidence, the Board must direct that the matter be referred to
the VA Central Office for consideration. If the matter is not
referred, the Board must provide adequate reasons and bases for
its decision to not so refer it. Colayong v. West 12 Vet.
App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
In this case, an extraschedular rating is addressed in the Remand
below.
ORDER
Service connection for major depression or other acquired
psychiatric disorder is denied.
A 50 percent schedular rating for cephalgia prior to May 5, 2009,
is granted, subject to the laws and regulations governing payment
of monetary benefits.
A schedular rating greater than 50 percent for cephalgia, for any
portion of the appeal period, is denied.
REMAND
The Veteran seeks TDIU on a schedular or extraschedular basis.
TDIU may be assigned, where the schedular rating is less than
total, when the Veteran is unable to secure or follow a
substantially gainful occupation as a result of service-connected
disabilities, provided that if there is only one such disability,
such disability shall be ratable as 60 percent or more and if
there are two or more disabilities, there shall be at least one
disability ratable at 40 percent or more and sufficient
additional disability to bring the combined rating to 70 percent
or more. 38 C.F.R. § 4.16(a) (2009).
The Veteran does not have a single disability rated at 60
percent. Specifically, he has a 50 percent cephalgia rating, a
10 percent tinnitus rating, and two noncompensable ratings. He
therefore does not meet the above-noted schedular guidelines
provided for TDIU pursuant to § 4.16(a).
A TDIU claim "presupposes that the rating for the [service-
connected] condition is less than 100%, and only asks for TDIU
because of 'subjective' factors that the 'objective' rating does
not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).
The provisions of § 4.16(b) allow for extraschedular
consideration of cases in which Veterans who are unemployable due
to service-connected disabilities but who do not meet the
percentage standards set forth in § 4.16(a). There must be a
determination that the Veteran's service-connected disability is
sufficient to produce unemployability without regard to advancing
age or non-service-connected disability. 38 C.F.R. §§ 3.340,
3.341, 4.16. Assignment of TDIU requires that the record reflect
some factor that "takes the claimant's case outside the norm" of
any other Veteran rated at the same level. Van Hoose v. Brown,
4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The
question is whether the Veteran is capable of performing the
physical and mental tasks required of employment, not whether the
Veteran can find employment. Id.
In VAOPGCPREC 6-96, VA's General Counsel (GC) stressed that where
the Veteran has alleged or asserted that the schedular rating is
inadequate or where the evidence shows exceptional or unusual
circumstances, the Board must specifically adjudicate the issue
of whether an extraschedular rating is appropriate. If there is
enough such evidence, the Board must direct that the matter be
referred to the VA Central Office for consideration. GC has not,
however, set forth how much evidence is "enough" evidence for
referral. Moreover, in VAOPGCPREC 6-96, GC stressed that if
further action is necessary, the Board should remand the TDIU
issue.
In this case, the Veteran's assertion of unemployability and a
May 2009 physician's opinion that completely prostrating
headaches occur daily are credible and competent evidence that
render the TDIU claim plausible. The Court specifically held
that the Board is precluded from assigning an extraschedular
rating "in the first instance." Floyd v. Brown, 9 Vet. App.
88, 94 (1996). Thus, the Board must remand the matter for
initial consideration by the proper authority-proper authority
being VA's Central Office.
VA has not submitted the TDIU claim to VA's Central Office.
Because the Board cannot adjudicate a TDIU claim until VA's
Central Office has considered it, the RO must submit the TDIU
claim to VA's Central Office for consideration.
Accordingly, the case is REMANDED for the following action:
The RO should submit the TDIU claim to the
Director, Compensation and Pension Service,
for extraschedular consideration in
accordance with 38 C.F.R. § 4.16(b) and
§ 3.321 (b). Following that action, if TDIU
is not granted, an appropriate supplemental
statement of the case (SSOC) should be
issued. The Veteran and his attorney should
be afforded an opportunity to respond to the
SSOC before the claims folders are returned
to the Board.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs